NAND v Minister for Immigration [2002] FMCA 370 (10 December 2002)

IMMIGRATION AND CITIZENSHIP - Immigration - review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa.

PRACTICE AND PROCEDURE - Hearing - failure of the applicant or his solicitor to appear - whether adjournment should be granted - previous adjournment by consent - application dismissed.

Federal Court Rules O. 32 R.2

Applicant:
NAND

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 749 of 2002

Delivered on:

10 December 2002

Delivered at:

Sydney

Hearing Date:

10 December 2002

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

No appearance by or on behalf of the Applicant

Counsel for the Respondent:

Mr Smith

Solicitor for the Respondent:

Sparke Helmore

ORDERS

(1) The Application is dismissed.

(2) The applicant is to pay the Respondent's costs of the application, assessed at $3,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY

SZ 749of 2002

NAND

Applicant

And

MINISTER FOR IMMIGRATION &ULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application which was originally listed for hearing before her Honour, Barnes FM on 10 October. The matter had previously been transferred by the honourable Tamberlin J of the Federal Court of Australia. Federal Magistrate Barnes due to pressures of other work in this jurisdiction was unable to deal with the matter on 10 October and the applicant and the respondent were advised on 20 September by the Registrar that the matter was being re-listed for hearing before me at 10.15 on Wednesday, 16 October.

2. On that occasion the applicant, through his solicitor, sought an adjournment. Indeed on 11 October the applicant's solicitor forwarded a letter to the Registrar confirming that the solicitor handling the matter would not be able to attend the Court as being sick due to back pain problem and requested an adjournment for a period of two months. Annexed to that letter was a medical certificate dated 10 October indicating that the solicitor, Mr Singh, was under doctor's care for acute lumbar strain and a disc lesion and would be unfit to attend Court from 11 October through to 2 November.

3. It is unclear in the circumstances why, on the basis of a medical certificate that indicated the solicitor was unable to attend Court for a period of less than a month, that an adjournment for some two months was sought. In any event, as I understand it, the respondent consented to that adjournment and the matter was listed for final hearing again before me today. Mr Smith for the respondent points out that the amended application which was dated 26 August does not in fact take the matter any further than before as it seems to address the law as it was prior to 2 October 2001.

4. That is of course not a bar to the application being heard by the Court. In proceedings before this Court, certainly before me and I understand before a number of my colleagues on the bench, the fact that the application is couched in pre 2 October 2001 terms does not preclude the Court from considering the application according to the law as it currently is. The Court would be most reluctant to deny an applicant the opportunity to be heard on what would be otherwise a strictly technical ground.

5. However, as Mr Smith points out from 2 October on when presumably the solicitor, was well enough to attend work until last Friday,

6 December, there has been no provision of any particulars or submission or any documentation whatsoever relating to the matters sought to be put before the Court. Indeed the only correspondence has been a further application for an adjournment again on the basis of back injury.

6. The material before me would leave the inference open that there has been no progress made on the presentation of the application between 2 November and now. What then happened was that yesterday an application was forwarded to the Court seeking a further adjournment again due to the fact that the solicitor would not be able to attend the Court as being sick due to a back pain problem. Again there was a request for a two month adjournment.

7. Annexed to the application was a medical certificate from the same medical practice dated 7 December indicating that the solicitor concerned was unfit to attend Court or to travel from Saturday,

7 December until Saturday, 21 December. Again there was acute exacerbation of disc lesion problem. What is sought today by the respondent is that the applicant should be dismissed and that there should be an order for costs. I should make it clear that the issue before the Court in respect of this particular matter is not whether or not the solicitor, is unfit to attend Court due to a medical problem.

8. I have a medical certificate which I accept on its face indicating that he is not well enough to attend Court today. The issue before the Court is whether the applicant is in a position to attend Court, whether he is represented or not represented. Now, it does happen from time to time that legal practitioners are unable to attend Court for medical reasons. Sometimes it is unavoidable. A solicitor can be suddenly taken ill or there is even a case where a lawyer has been involved in an accident on the way to Court.

9. These things happen and indeed it is my understanding that the previous application for an adjournment due to a medical problem involving the solicitor was in fact consented to and I am of the view that that was proper in the circumstances. The solicitor however as I said appears to have taken no steps to bring the matter any closer to a hearing than it was before. He is not here. There is no attendance by any other lawyer and of course the immediate answer is well if that solicitor is not well enough to attend Court, why could counsel not be briefed or why could not another solicitor attend as an agent.

10. I have had presented to me now a faxed letter in reply to the respondent's solicitor's letter in which the respondent has indicated that they did not consent to a further adjournment. In this case, the solicitor says , and I read this onto the record:

I confirm that I am really sick and unable to attend the Court for this hearing date of 10 December 2002. I had already a back operation and suffer from the back pain every now and then.

I confirm that I cannot walk or stand on my feet more than five minutes. I am getting the necessary treatment for my back pain problem.

11. He goes on to give an explanation as to why the applicant is not represented by another lawyer today which is of course the immediate question:

I note that my client cannot afford to engage another lawyer or any counsel due to the financial difficulties therefore I am acting for the applicant without any fees.

He says:

I undertake that this will be the last adjournment of this matter.

12. Now, instead of an adjournment of two months he is asking for an adjournment at least for a fortnight and of course that request for an adjournment for a fortnight is in line with the medical certificate. What concerns me is that the applicant is not here either. There is just no-one here on behalf of the applicant. Now, as so often happens in this case it may be that the applicant would not be in a position to present his own case even if he were supplied with copies of say a written submission from the solicitor. That is a solution that Mr Smith suggested and it appears not to have been taken up.

13. As I indicated earlier it is not an issue as to whether the solicitor is unable to attend Court because he has a back problem. I accept that he has. He has also said that he is acting without fees. I know no reason to challenge that either but if you appear for someone, you appear whether you are being paid for the work or not. If you undertake the work to act for a party then the Court expects you to actually do the work. What is happened is that for the second time the applicant has said the solicitor has a back problem, is not able to attend Court therefore the matter must go over.

14. Now, I am not satisfied that the matter should be adjourned again. If someone had attended on behalf of the applicant, if there had been some submissions either brought in person or indeed faxed to the Court, if the applicant had appeared and sought to make submissions I may have been persuaded to take a less severe view. What has happened however is that the applicant has not even attempted to commence the matter. The Federal Magistrates Court does not have an abundance of Court time available to it. The Court has a limited number of Federal Magistrates across Australia and its Court time is precious. Every day must be filled.

15. I am just not satisfied that a sufficient reason has been shown to adjourn these proceedings yet again. I am of the view that apart from seeking adjournments there is no other evidence that the applicant has done anything to get this case into any state to be considered by the Court. I do not propose to adjourn the application. It has been listed for hearing today and as the applicant has not attended or made any submissions or presented any evidence I am of the view that the application must be dismissed.

16. The Federal Magistrates Court Rules 2001 provide that: "If, in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules, in whole or in part and modified or dispensed with, as necessary." (Rule 1.01). In cases such as this, I am satisfied that it is the practice of the Court to apply Order 32 r 2(1)(c) of the Federal Court Rules, and I propose to do so in this case.

17. Order 32 r 2(1)(c) provides that "If the party absent is an applicant or cross-claimant (the Court may) dismiss the action or cross-claim." This means that if the respondent appears but the applicant does not appear, the respondent is entitled to judgment dismissing the claim. Order 32

r 2(1)(c) does not require the Court to investigate the merits of the absent applicant's case (Pham v University of Queensland [2002] FCA 203).

18. I dismiss the application. I am satisfied that it is a matter where I should make an order for costs. I indicated to Mr Smith of counsel during his submissions that I would be reluctant to make an order for costs against a solicitor personally but that does not preclude an application for costs being made in the usual way.

19. I am satisfied that this is a matter where the applicant should pay the respondent's costs and I propose to allow the sum of $3500.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM